State v. Goodwin

• Decision Date: 20 December 1978
• Docket Number: No. 78-063,78-063
• Parties: The STATE of New Hampshire v. Alvah GOODWIN.
• Court: New Hampshire Supreme Court

Page 1234

395 A.2d 1234

118 N.H. 862

The STATE of New Hampshire v. Alvah GOODWIN.

No. 78-063.

Supreme Court of New Hampshire.

Dec. 20, 1978.

Thomas D. Rath, Atty. Gen., and Richard B. McNamara, Asst. Atty. Gen., for the State.

Bruce E. Kenna, Manchester, by brief and orally for defendant.

LAMPRON, Chief Justice.

The defendant was indicted for being an accomplice to kidnapping, in violation of RSA 626:8 and 633:1, and being an accomplice to aggravated felonious sexual assault, in violation of RSA 626:8 and 632-A:2 (Supp.1977). A jury trial resulted in guilty verdicts on both counts. The principal, Francis Taylor, has not yet been tried. See State v. Taylor, 118 N.H. ---, 516 A.2d 1239 (1978) (decided this day). The trial court found at the time of sentencing that the evidence proved that the victim was not returned without serious bodily injury, and ruled that the kidnapping was a class A felony rather than class B. RSA 633:1 II; RSA 625:11 VI. The defendant was sentenced to a term of seven-and-one half to fifteen years on the accomplice-to-the-aggravated-sexual-assault charge, and to a term of four to fifteen years on the accomplice-to-kidnapping charge, the sentences to be served consecutively. Defendant's exceptions to rulings of the court before, during, and after trial were reserved and transferred by Dunfey, J.

The defendant raises three issues before this court. He challenges the sufficiency of the evidence to support his convictions; specifically, he claims that the judge erred in denying his motions to dismiss and to set aside the verdicts. He next argues that the court incorrectly interpreted "serious bodily injury" as used in the kidnapping statute, RSA 633:1 II, to include rape in and of itself, thus turning what would otherwise be a class B felony into a class A felony. Finally, the defendant asserts that the length of the sentence imposed by the court constitutes cruel and unusual punishment in violation of the eighth amendment to the United States Constitution and part I, article 18 of the New Hampshire Constitution. For the reasons elaborated upon below, we affirm defendant's accomplice-to-aggravated-felonious-sexual-assault conviction, but hold that he was guilty as an accomplice to a felony class B felony kidnapping, not class A felony kidnapping.

The evidence shows that on February 1, 1977, a 17-year-old high school female student was walking home from school in Manchester. A car in which there were two men pulled up next to her. The defendant owned the car and was riding in the front passenger seat. The driver, Francis Taylor, asked the victim for directions to Massachusetts. Acting as if confused, he climbed out of the car, and spread a map on the hood. While the victim was leaning over the map to point out the way, Taylor grabbed her from behind and forcibly put her into the car. Taylor then got in beside her and drove off. During this time, the defendant sat in the passenger seat drinking a beer.

Taylor then ignored the victim's directions, and headed north toward Hooksett. At one point the defendant tried to converse with the girl, but he said nothing threatening. In Hooksett, they stopped at a small store. After instructing the defendant to "make sure she doesn't go anywhere," Taylor went inside to buy cigarettes and beer. In Taylor's absence, the victim pleaded with the defendant to take her home. The defendant responded by putting his hand on her leg and answering that he could not because Taylor would get angry.

Taylor returned and they continued to drive north toward Concord. On two separate occasions they stopped on deserted back roads, at which point Taylor attempted to sexually assault the victim. The defendant did not actually participate, except at that point he told Taylor not to hurt the girl. After these incidents, Taylor suggested that they go the defendant's apartment in Hillsborough, and he drove there.

Upon reaching the defendant's apartment, the defendant was the first to leave the car. He unlocked the door to the apartment. Taylor followed with the girl, took her into the bedroom and while the defendant was present raped her. At one point when the victim's cries were loud, the defendant picked up a large knife which was in the room, and waived it at Taylor, as if to make him stop. Nonetheless, on Taylor's command, he put the knife down.

Taylor then told the victim that she could not go home until she satisfied Mr. Goodwin. The defendant then stated, "she can stay overnight with me, and then I'll take her home in the morning." Taylor ordered the victim to sit on the bed. The defendant then sat down beside her, put his arm around her shoulders, and tried to kiss her, but stopped when the victim pushed him away.

Taylor and a third man, who entered the apartment, then agreed to take the victim home. They drove to Manchester and left the victim within half a block of her house. Using the victim's descriptions of Taylor and Goodwin, the Hillsborough police arrested the defendant the next day.

I. Motions to Dismiss and to Set Aside Verdict

The defendant was convicted of being an accomplice to the kidnapping and rape allegedly committed by Francis Taylor. RSA 626:8 (III), provides in pertinent part that:

A person is an accomplice of another person in the commission of an offense if . . . with the purpose of promoting or facilitating the commission of the offense, he solicits such other person in committing it, or aids or agrees or attempts to aid such other person in planning or committing it. . . .

The defendant asserts that there was insufficient evidence to support a finding that he participated as an accomplice in the kidnapping and rape because he was merely present and had no duty to prevent the commission of the crimes; and he was so highly intoxicated that it was impossible for him to have the necessary mental state to make him liable as an accomplice.

Mere presence at the scene of a crime is insufficient to make a person criminally responsible. State v. Shippee, 115 N.H. 694, 349 A.2d 587 (1975). Nevertheless, presence can be enough to prove complicity if the presence is intended to, and does, aid the primary actor. Long v. United States, 124 U.S.App.D.C. 14, 360 F.2d 829, 835 (1966). "Presence is thus equated to aiding and abetting when it is shown that it designedly encourages the perpetrator, facilitates the unlawful deed . . . ." Bailey v. United States, 135 U.S.App.D.C. 95, 98, 416 F.2d 1110, 1113-14 (1969). Moreover, "the circumstances under which the defendant is present . . . may be such as to warrant the jury inferring beyond a reasonable doubt that he sought thereby to make the crime succeed. . . ." 1 F. Wharton, Criminal Law § 114 at 60 Supp. (1978).

In reviewing a trial court's denial to set aside the verdict based on the insufficiency of the evidence, "this court must consider the evidence in the light most favorable to the State, which is entitled to all reasonable inferences that arise from the evidence." State v. Berry, 117 N.H. 352, 355, 373 A.2d 355, 357 (1977); See State v. Breest, 116 N.H. 734, 741, 367 A.2d 1320, 1326 (1976). Although the State must establish guilt beyond a reasonable doubt on all the essential elements, it may rely on circumstantial, rather than direct, evidence. State v. Palumbo, 113 N.H. 329, 330, 306 A.2d 793, 796 (1973).

Based on the evidence the jury could have found that the defendant was not an innocent bystander. The defendant and Taylor were friends. The defendant owned the instrumentalities crucial for both crimes, the car and the apartment where the rapes occurred. Although the evidence shows that the defendant took no particularly hostile or aggressive actions against the victim, the jury could have found, that the defendant aided the principal in committing the crimes by enticing the victim to cooperate and not to escape. When Taylor left the car at the store in Hooksett, the defendant put his hand on the victim's knee and told her that she could not leave. At the apartment, when the victim struggled with Taylor, the defendant told her, "Don't struggle with him, or he'll probably hurt us both." The jury could reasonably conclude that the defendant's presence facilitated and encouraged Taylor's actions.

The defendant argues, however, that his advanced state of intoxication prevented him from having the mental intent to aid the principal. It is for the jury to resolve whether intoxication negates the element of intent. RSA 626:4; State v. Caldrain, 115 N.H. 390, 342 A.2d 628 (1975); State v. Warren, 114 N.H. 196, 317 A.2d 566 (1974); State v. Plummer, 117 N.H. 320, 374 A.2d 431 (1977). There was evidence that the defendant had been drinking heavily that day, and that he continued to drink during the commission of the crime. Nevertheless, the defendant was able to converse fairly coherently. He was sufficiently lucid while they were driving to warn Taylor, "It's icy, you should slow down." The defendant was sufficiently aware of Taylor's activities to tell him not to hurt the girl. Although the victim did testify that the defendant smelled heavily of beer, she stated that "(h)e knew what he was talking about."

In the face of all the evidence, a reasonable jury could have found beyond a reasonable doubt that the defendant had the intent to aid the principal in the commission of the kidnapping and rape, and that he did in fact aid the principal. Therefore, the trial court correctly denied the defendant's motions

to set aside the convictions due to the insufficiency of the evidence. II. Sufficiency of the Evidence to Sustain the Finding that Victim Was Not Released Without Bodily Injury.

The defendant next contends that the trial court improperly upgraded the kidnapping conviction from a class B felony to a class A felony. Kidnapping is a class B felony, if "the actor voluntarily releases the victim without serious bodily injury and in a safe place prior to trial." RSA 633:1 II. Serious...